Child custody before divorce

Kunal (Querist) 03 August 2023 This query is : Resolved
Married in 2014.
My 7.5 year old boy child is with me at mumbai.
And 5 month old boy child with wife at Indore.
All means of contact and mediation has failed.

It's repeated, because she did same in 2018 when first child was just 2 years old. Wife Filed divorce. I filed marriage petition.
But, settled after 4 months.

lawyers suggest to go for RCR marriage petition again.But, I am fed of her repeated insulting behaviour. And want to go for divorce

I understand that it's impossible to get 5 month old child custody from mother.
So, I am ok if elder child remains in my custody. And 5 month child with mother. And we both get visitation rights.

So, if I file divorce first, can I ensure child custody of 7.5 year boy with me.
Or if I file marriage petition then also, elder child custody will remain with me ?

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Quick Summary

This discussion addresses child custody arrangements for a couple with two young sons, where the parents are separating. The father is seeking clarity on how to ensure custody of their 7.5-year-old son while acknowledging the mother will likely retain custody of their 5-month-old. The advice highlights that child custody is a separate legal matter from divorce proceedings and suggests exploring amicable resolutions or formal consent orders for parenting arrangements.

kavksatyanarayana (Expert) 03 August 2023
I opine both you and your wife have equal legal rights to the children. If the parents are able to come to an agreement that is going to occur with the children then a father may document this in a set of consent orders or a parenting arrangement so both divorced parents have equal rights to keep custody of the children after divorce.

T. Kalaiselvan, Advocate (Expert) 03 August 2023
The child custody case is different to taht of the divorce case.
Both are having its own nature of reliefs.
You cannot combine the child custody relief in the divorce case and vice versa.
So decide properly about whatever case you want ot file and the reliefssought therein

Dr. J C Vashista (Expert) 05 August 2023
Your view qua custody of 5 months old child with mother (your wife) is justified.
It would be better and appropriate to settle the disputes / issues and matter amicably roping in elders / relatives / friends / counselor or some other respectable person of the society .

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